judicial nominees

This is a good day for Americans who care about our federal courts. According to press reports, Judiciary Committee Chairman Patrick Leahy has said that Georgia federal district court nominee Mike Boggs lacks majority support on the committee and that he should withdraw. The New York Times calls the nomination "dead."

Federal judicial nominees routinely - and appropriately - assure senators that their personal feelings and political positions will play no role in their judicial decisions. But this particular nominee did exactly the opposite when running for election as a state judge in 2004. That's when then-Rep. Boggs told voters at a judicial candidates' forum, "I am proud of my record. You don't have to guess where I stand - I oppose same-sex marriages. I supported and authored the Child Protection Act to protect children from predators. I have a record that tells you exactly what I stand for."

This connection - that Boggs himself made - between how he would approach judging cases to his views as a legislator on the legal issues that would be before him as a judge, compelled the Senate Judiciary Committee to examine Boggs' legislative record.

And what a disturbing record that was: He sought to amend the state constitution to forever lock gays and lesbians out of the promise of equality and to prohibit the Georgia legislature from ever extending marriage rights to gays and lesbians. He supported anti-choice legislation and even voted for a bill amendment that would have put abortion providers' lives at risk. He voted in support of having the Confederate battle symbol incorporated into the state flag. He sought to use the power of government to promote religion, church-state separation notwithstanding.

Given his 2004 assurance that his legislative record showed how he would rule as a judge, senators could certainly presume that Boggs has a severely cramped view of constitutional Equal Protection, reproductive rights, and church-state separation. LGBT people, religious minorities, African Americans, and women could not be assured that their basic rights would be recognized and fully protected in his courtroom.

To make things worse, his efforts to explain away his record to the Judiciary Committee raised questions about his candor.

For instance, at his hearing, he assured both Senators Mazie Hirono and Chris Coons that statements he made in 2004 while expressing his opposition to marriage equality about "the dangers that we face with respect to activist judges" were views he held as a legislator, not as a judge. Yet he sounded quite different as recently as November 2011, having been a judge for nearly seven years. At that time, Boggs was promoting himself to a different audience, the Judicial Nominating Commission of Georgia, which was considering recommending to the governor his appointment as a state appeals court judge. When asked then how to improve the efficiency and effectiveness of the legal system, Boggs cited as the problem "judges who abrogated their constitutionally created authority" and "judicial decisions that have ignored and violated the basic tenets of the judiciary."

At his Senate confirmation hearings just a few years later, Sen. Coons asked Boggs to name three or four examples of cases that he'd had in mind when he expressed those concerns in 2011. Boggs admitted that as a legislator in 2004, he considered cases recognizing marriage equality as a state constitutional right as fitting this category, but didn't say what cases he'd had in mind in 2011. In her written follow-up questions, Sen. Dianne Feinstein asked Boggs if he could name any decisions that he believed abrogated the judiciary's constitutionally created authority (using his words). He responded that he could not recall any cases that he had been thinking of at the time.

Yeah, right. Based on what Boggs told the state Commission, he viewed this as extremely serious, going to the very legitimacy of the courts. Yet just a few years later, even after being given additional time to think about it, he could not recall even one case that he'd had in mind. One could be forgiven for believing instead that he actually had in mind the same cases he'd referred to in 2004, and that he was telling the commissioners - and ultimately, Georgia's governor - what he thought they wanted to hear.

His efforts to explain away his votes endangering abortion providers and supporting the Confederate battle symbol were equally not believable, and apparently they were not believed by a majority of committee members. Good for them.

Boggs' disturbing record showed he was unqualified for the federal bench. Today's news shows that a majority of the Judiciary Committee agrees.

The fight to keep the Senate blue this November is critical to a slew of progressive issues – from immigration reform to voting rights, women’s health to LGBT equality. But the greatest risk of a Republican Senate could be an issue that gets far less mainstream attention: judicial and executive nominations.

“This election in November is huge, because whoever controls the Senate now is going to be in control of every single nomination to the federal bench for the next few years,” said Fischer, who alleged that there is an “overwhelming preponderance of Obama acolytes” on federal courts.

There are countless reasons for progressives to turn out to the polls this November 4, and little doubt in our minds that the fight to keep the Senate blue will be a tough one. But the potential for continued judicial and executive vacancies that could result from a Republican-controlled Senate – and could have serious, negative consequences on the capacity of our judicial and executive branches of government -- is especially onerous.

Federal district court nominee Michael Boggs of Georgia had his confirmation hearing before the Senate Judiciary Committee on Tuesday. The hearing was his opportunity to address the many serious concerns we and others have had about his record. When he first ran for office as a state judge, he assured voters that they could know where he stood by looking at his legislative record, including his opposition to marriage equality. But judges aren’t supposed to let their personal political beliefs determine how they rule on cases. In addition, the legislative record he cited is deeply disturbing.

Unfortunately, his testimony in response to senators’ questions only deepened our concerns. So in a letter Wednesday to members of the Senate, People For the American Way expressed strong opposition to this confirmation. PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon delineated the reasoning behind the organization’s opposition to Boggs’ confirmation.

“[Boggs’] record makes clear that senators should not confirm him to a lifetime position as a United States judge,” the letter states. “…we do not believe Michael Boggs has demonstrated that he would be able to bring to his service as a lifetime judge on the federal courts the requisite impartiality necessary for such a position.”

The five page letter discusses the problems around Boggs’ ability to perform in the role of judge and his actions relating to LGBT equality, reproductive rights, and government promotion of religion. It also discusses the controversy around his support for the inclusion of Confederate imagery in the Georgia state flag, as well as his candor before the Judiciary Committee. You can read the full text of the letter here.

Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.

Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.

She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.

Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.

Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.

Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).

Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.

Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.

Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.

Last week, over one thousand law professors came together to publicly condemn the vote by writing a letter to the Senate where they explain the ramifications of the vote for law students, lawyers, and the legal profession as a whole. The letter – dated April 25, 2014 – states:

[W]e are deeply concerned that the vote and the rationale publicly articulated by a majority of Senators rejecting Mr. Adegbile sends a message that goes to several core values of the legal profession. These include the right to counsel, the importance of pro bono representation, and the importance of ensuring that constitutional protections are afforded to every criminal defendant regardless of the crimes for which they are accused.

As law teachers we are particularly concerned about the disquieting message conveyed to law students and graduates entering the profession who may fear that their engagement with pro bono representation of unpopular clients may imperil their future eligibility for federal government service.

…We believe that the criticism of Mr. Adegbile, based on his representation of a death row inmate, is unjust and inconsistent with the fundamental tenets of our profession. The Sixth Amendment to the United States Constitution guarantees the assistance of counsel to persons charged with crimes, and all accused defendants are entitled to zealous representation by competent counsel.

The highest calling of any lawyer is to ensure that the Constitution is applied fairly and in accordance with the decisions of the U.S. Supreme Court to every defendant.

…The debate surrounding Mr. Adegbile’s confirmation also threatens to undermine the widely-recognized importance of lawyers providing pro bono representation to meet unmet legal needs. Providing representation to defendants on death row is among the most challenging, resource-intensive and critically important pro bono counsel a lawyer can provide. Lawyers engaged in this work should be commended rather than denounced for their hard-work and commitment to ensuring that the protections of the Constitution are extended even to those accused of heinous crimes.

…Finally, as every lawyer knows – including the 57 in the U.S. Senate – we are not our clients. The constitutional right to effective assistance of counsel would be turned on its head if the contrary view were advanced. Indeed, had past candidates for public office been held to the Senate’s unjust standard, our nation would have been deprived of the likes of President John Adams (who defended British soldiers charged with killing Americans in the Boston Massacre), Justice Thurgood Marshall (who defended countless black men on death row in the Jim Crow South), and Chief Justice John Roberts (who represented convicted serial killer John Errol Ferguson).

Simply put, the rule of law cannot succeed if attorneys are judged guilty by association with their clients. In rejecting a qualified nominee for public service based on conduct which reflects the best of our profession, the Senate has done a grave disservice to the legal profession and those who seek to enter it.

Friedland was one of many superb, highly qualified judges caught up in Republicans' blanket obstruction of judicial nominees, and President Obama was forced to re-nominate her for the court this year. After today’s vote, she still faces 30 hours of potential "post-cloture debate," unless Republicans allow the Senate to move forward on the nomination more expeditiously.

Even though the Senate changed its filibuster rule for judicial and executive branch nominations, lowering the threshold from 60 votes to a simple majority in order to invoke cloture and advance nominees toward confirmation votes, Republicans continue to force cloture votes as a procedural hurdle. The delay created by these votes and the subsequent 30-hour wait before a confirmation can occur amounts to a stubborn form of obstruction in itself.

And this is just one way that Senate Republicans are continuing to hold up the judicial nomination process. Judicial nominees from states with Republican senators also face unreasonable, meritless obstruction due the GOP's abuse of the Senate's "blue slip" policy, by which a senator can unilaterally put a permanent hold on a nominee from his or her state before they even get a hearing.

There are currently 31 judicial nominees on the Senate's calendar, many for long-unfilled vacancies and nearly half for ones that have been declared "judicial emergencies." As vacancies languish, courts can't do their job and in turn, Americans are denied access to justice. If Republican senators ended their obstruction and allowed the 31 pending nominees to go through, that alone would fill a third of the nation's current vacancies.

Today alone, in addition to wasting the Senate's time and taxpayers' money by forcing the Leadership to hold a cloture vote on Michelle Friedland, instead of just bringing her confirmation straight to an up-or-down vote:

Republican senators successfully filibustered the Paycheck Fairness Act, for the third time, despite persistent inequity in pay for women and men doing the same work.

And on the House side, Republicans on the House Education and the Workforce Committee blocked Democrats' attempt to bring the Employment Non-Discrimination Act (ENDA) up for consideration.

We’re going to keep fighting to get as many more nominees confirmed as we can this year, before time runs out. Butthe message we send to Republicans in November is tremendously important as well.

Winning or losing at the ballot box could be the difference between a continued vacancy crisis on federal courts dominated by pro-corporate, conservative ideologue judges or the restoration of balance and justice to our courts with the confirmation of highly qualified judges who understand the promises of the Constitution and how the law impacts the lives of real people.

Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.

As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.

As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today.

And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."

Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”

“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.

Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”

And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues, “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”

These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.

What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act. She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that her Republican opponents have distorted beyond recognition.

By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women's rights supporter to fairly apply the law.

On ABC News’ “This Week” yesterday, Republican Sen. Orrin Hatch of Utah claimed that he takes the “principled position” of voting against filibusters of judicial nominees:

And matter of fact, I continue to vote against filibusters with regard to judicial nominations because I think it's a principled position. I actually think the president, whoever the president may be ought to have the full choice of who they put on the bench.

And unless there's just some overwhelming reason why somebody should never be on the bench.

But on many pivotal votes to break GOP filibusters of President Obama’s federal judicial nominees, Sen. Hatch hasn’t voted “against” the filibuster. Instead, he’s made a habit of voting “present” or not voting at all. Because a motion to break a filibuster requires 60 affirmative “yes” votes to succeed, not voting or voting “present” in effect supports the continuation of the filibuster.

These votes allow Hatch to say he didn’t support a filibuster, while in fact voting to do just that. And he certainly didn’t take a “principled position” to vote “against” his Republican colleagues’ obstruction.

Senate Majority Leader Harry Reid today moved to end Republican filibusters of seven of President Obama’s nominees to fill executive branch positions, including nominees for some of the agencies most despised by the GOP: Richard Cordray to head the Consumer Financial Protection Bureau, Tom Perez for Secretary of Labor, Gina McCarthy to head the EPA and three nominees to the National Labor Relations Board.

The move presents an ultimatum for Senate Republicans: end their senseless obstruction or force Reid to change Senate rules to eliminate nominations filibusters.

In a memo this week, we laid out the statistics behind the GOP’s unprecedented obstruction of President Obama’s executive branch nominees. We found that if Republicans keep on obstructing Obama’s nominees at the current rate, they will have filibustered more executive branch nominees under Obama than under all previous presidents combined.

The Senate has had filibuster showdowns before – most notably in 2005, when a bipartisan group of senators agreed to let several extreme George W. Bush judicial nominees go through, including a number of the judges who now make up the influential D.C. Circuit's extraordinarily right-wing majority.

It was a compromise that left progressives cringing, but let Senate business move forward. But now Senate Republicans are acting like they’ve never heard the word “compromise.” According to Politico, Reid had some strong words on the situation:

In a closed-door caucus meeting Thursday, Reid began by apologizing to his colleagues for cutting bipartisan deals to avert the nuclear option, including at the beginning of this year. And the Nevada Democrat complained that he allowed votes on scores of conservative nominees under former President George W. Bush after a bipartisan coalition headed off the nuclear option in 2005. But Reid said it had been the right thing to do because Bush had won a second term in the White House.

Now, Reid argued, times have changed.

“I ate sh— on some of those nominees,” Reid told his colleagues, according to sources who were present.

The Senate Judiciary Committee yesterday approved the nomination of Sri Srinivasan to sit on the powerful Court of Appeals for the D.C. Circuit. There are currently four vacancies on the D.C. Circuit – and Senate Republicans have prevented President Obama from filling a single one.

The Senate yesterday also confirmed William Orrick to serve on the District Court for the Northern District of California, a seat that had been officially designated a “judicial emergency” because of its overworked courts. The confirmation vote came a full eight months after Orrick was first approved with bipartisan support in the Senate Judiciary Committee.

In a Senate floor speech Wednesday, Sen. Elizabeth Warren of Massachusetts discussed the Senate GOP’s extraordinary obstruction of federal judicial nominees, noting the high level of officially-designated “judicial emergencies,” which has risen by 30 percent since the beginning of the year.

The Founders of our Republic gave to the President the task of nominating individuals to serve and gave us the responsibility to advise on and consent to these appointments. For more than 200 years this process has worked.

Presidents over the years have nominated thousands of qualified men and women who were willing to serve in key executive branch positions.

The Senate has considered nominations in a timely fashion and taken up-or-down votes. Of course, there have been bumps along the way, but we have never seen anything like this. Time and again, Members of this body have resorted to procedural technicalities and flatout obstructionism to block qualified nominees.

At the moment, there are 85 judicial vacancies in the U.S. courts, some of which are classified as ``judicial emergencies.'' That is more than double the number of judicial vacancies at the comparable point during President George W. Bush's second term. Yet right now there are 10 nominees awaiting a vote in the Senate, and they have not gotten one.

Senate Republicans like to blame the judicial vacancy crisis on President Obama, whom they say has not been quick enough to nominate judges. Sen. John Cornyn of Texas ran into the fallacy of this talking point last week, when he was called out for blaming the president for Texas vacancies that Cornyn himself was responsible for.

The president continued his steady pace of federal judicial nominations last night, nominating four women to federal judgeships in Utah, Tennessee, New York and Mississippi.

UPDATE: The White House points out in a blog post today that President Obama has now nominated more district court judges than had President Bush at this point in his presidency.

A new study from the nonpartisan Congressional Research Service [pdf] quantifies the extent to which Senate Republicans have been stalling President Obama’s judicial nominees. Through this persistent obstruction, Senate Republicans have kept the chamber mired in gridlock, thrown the federal courts into an historic vacancy crisis, and prevented President Obama from restoring ideological balance to a system still dominated by George W. Bush nominees.

The study finds that President Obama’s judicial nominees – including those with no partisan opposition – face extraordinary wait times for simple yes-or-no votes from the Senate.

CRS notes that “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year.” In particular, the study notes, the wait times for district court nominees – whose decisions do not bind other courts and who have historically been approved quickly and without controversy – have shot up in the past four years:

Where President Obama’s judicial nominees face the greatest delays is between approval by the Senate Judiciary Committee and a vote from the full Senate. Because the Senate must have unanimous consent or invoke cloture to hold an up-or-down vote, senators in the minority can quietly filibuster judicial nominees for months without giving a reason for delaying the votes. For instance, Robert Bacharach of Oklahoma, who was nominated to a seat on the Tenth Circuit Court of Appeals, was forced to wait nine months for a vote from the full Senate, despite the fact that he was supported by both of his home state’s conservative Republican senators. In the end, he was confirmed unanimously.

Perhaps the starkest example of Republican obstruction under President Obama is the gridlock that completely unopposed judicial nominees have faced. CRS finds that President Obama’s unopposed district court nominees have waited nearly three times as long for a Senate vote as did President Bush’s and nearly six times as long as President Clinton’s. His unopposed circuit court nominees have waited over four times as long as President Bush’s and seven times as long as President Bush’s.

It’s important to note also that many more of President Obama’s nominees would count as unopposed – making these numbers even more dramatic -- if Republican Sen. Mike Lee of Utah hadn’t spent a year opposing every one of President Obama’s judicial nominees in protest of a completely unrelated issue.

By trying not to be partisan, at least in this area of political coverage, we journalists are in many ways becoming more partisan than we fear. James Fallows, the author and longtime correspondent at The Atlantic, has been preaching for years now about “false equivalence” in reporting about the Senate’s current gridlock. He has called out reporters and editors, producers and television hosts, headline writers and analysts, for their continuing failure to call it like it really is when it comes to these Senate votes. For example, on Wednesday, in the wake of the background check vote, which “passed” the Senate by a vote of 54-46 but effectively “failed” because of the threat of a filibuster, Fallows again explained the concept. He wrote:

Since the Democrats regained majority control of the Senate six years ago, the Republicans under Mitch McConnell have applied filibuster threats (under a variety of names) at a frequency not seen before in American history. Filibusters used to be exceptional. Now they are used as blocking tactics for nearly any significant legislation or nomination. The goal of this strategy, which maximizes minority blocking power in a way not foreseen in the Constitution, has been to make the 60-vote requirement seem routine. As part of the "making it routine" strategy, the minority keeps repeating that it takes 60 votes to "pass" a bill — and this Orwellian language-redefinition comes one step closer to fulfillment each time the press presents 60 votes as the norm for passing a law.

News consumers, in other words, are led to believe that what is happening is just “politics as usual,” tit-for-tat, part of the murky vote-counting calculus that has always been a part of the Senate’s rules. But there is now ample evidence to suggest that this tactic has fundamentally changed the way Congress works. In 2009 alone, the Brennan Center’s Diana Kasdan told me last week, “there was double the number of filibusters that occurred in the entire 20-year period from 1950-1969, when they were used repeatedly and notoriously to block civil rights legislation.” In other words, today’s abuse of the filibuster is extraordinary. Yet Fallows gives many examples — actual headlines, probably hundreds of them over the years — in which journalists have refused or failed to properly communicate this to their audience. Without adequate context and perspective about what is happening in the Senate, the American people are hampered in how quickly they can force their elected officials to change (or, more accurately, to change their elected officials).

Back in December, The New York Times’ Linda Greenhouse wrote a great article explaining how the National Rifle Association has worked in concert with Republican senators to oppose many of President Obama’s federal judicial nominees – usually without anything close to a legitimate reason. The NRA’s “symbiotic relationship with the Republican Party,” Greenhouse wrote, led the group to oppose judicial nominees like Sonia Sotomayor, who had next to no record on the Second Amendment, and the party to chip in when the NRA didn’t like a nominee.

It is that symbiotic relationship that succeeded in sinking the nominations of two highly qualified women to federal courts this week. Both were unquestionably qualified and well-respected in legal circles. The NRA and the Senate GOP went after both for completely unfounded reasons.

Caitlin Halligan was President Obama’s nominee to fill one of four vacancies on the hugely influential Court of Appeals for the D.C. Circuit. Never mind that she had broad bipartisan support and sterling credentials. She had once represented a client, the state of New York, in a lawsuit against gun manufacturers. Back when John Roberts was being considered for the Supreme Court, Senate Republicans said that judicial nominees shouldn’t be held responsible for positions they took as lawyers on behalf of clients. But no matter. Senate Republicans twice voted to filibuster her nomination – most recently on Wednesday – never even allowing her an up-or-down vote.

Then today, Nevada District Court nominee Elissa Cadish withdrew her nomination over one year after she had been selected by President Obama. Her story was similar. Filling out a questionnaire in 2008, Cadish stated that under then-current law, the constitutional right to bear arms didn’t apply to individual citizens. She was correct. Two months later in a 5-4 opinion, the Supreme Court established for the first time that the Second Amendment does contain that right. Cadish made clear that she understood, and would follow, the new Supreme Court precedent.

But no matter. The NRA targeted Cadish and Nevada Sen. Dean Heller used a little-known Senate practice to keep her from ever even getting the chance to explain her views in front of the Judiciary Committee. Under committee procedures used by Chairman Patrick Leahy as a courtesy to his colleagues, a nominee is not granted a hearing unless both of her home-state senators give permission in the form of a “blue slip.” Heller simply refused to sign the blue slip for Cadish, thus single-handedly sinking her nomination.

The flimsiness of the arguments against Cadish and Halligan, and the fact that much of the opposition took place behind the scenes (in the case of Cadish without even a public hearing), betrays the real reason the NRA and the GOP were working to keep these women off the federal bench. They just don’t want President Obama to be nominating federal judges.

People For the American Way today sent letters to members of the U.S. Senate urging them to vote to confirm Caitlin Halligan to sit on the Court of Appeals for the District of Columbia Circuit. The full text of the letter:

March 4, 2013
United States Senate
Washington, DC 20510

Dear Senator:

On behalf of the hundreds of thousands of members of People For the American Way, we write to express our strong support for the confirmation of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit. With a fourth seat on this 11-member court becoming vacant, the urgency of confirming Halligan becomes even more pressing.

Caitlin Halligan is supremely qualified with a broad level of support in the legal, women’s and law enforcement communities. Currently the General Counsel for the Manhattan District Attorney's Office, she also spent six years serving as New York State's Solicitor General. She is a nationally respected litigator who has earned the ABA's highest possible evaluation of her qualifications.

Her career shows that she recognizes that protecting individuals, their families, and their entire communities requires not only tough prosecution, but tough prosecution done fairly. So while she shares management responsibility for the Manhattan DA's Special Victims Bureau (which prosecutes those involved in child abuse, rape, domestic violence, and elder abuse), she also has been instrumental in the DA's Conviction Integrity Program, which seeks to prevent and correct wrongful convictions.

Her nomination has the support of numerous law enforcement individuals and organizations, including Robert Morgenthau (former DA of Manhattan), Raymond Flynn (New York City's Police Commissioner), the National District Attorneys Association, the New York State Sheriffs’ Association, the New York State Association of Chiefs of Police, and New York Women in Law Enforcement.

The best judges understand keenly how the law affects ordinary people. Halligan has worked to help economically disadvantaged families throughout her career. Even before law school, she worked at Georgians for Children, a statewide public policy organization that focuses on issues related to impoverished children and families. Over the years, she has engaged in pro bono work and community service projects that focus on families with the greatest needs. For example, she represented victims of Hurricanes Katrina and Rita who were at risk of losing their housing assistance.

In its 120-year history, the DC Circuit has had a grand total of five women judges. Halligan clerked for the first of those, trailblazer Patricia Wald, and she would be the sixth if confirmed. The National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, the National Center for Women and Policing, and the U.S. Women's Chamber of Commerce are just some of the women's organizations that are supporting her nomination.

Halligan has received the highest possible rating of her qualifications from a unanimous panel of the ABA’s nonpartisan Standing Committee on the Federal Judiciary. She has also received the strong support of a bipartisan group of renowned appellate advocates, including Miguel Estrada (Assistant to the Solicitor General under President George W. Bush and former nominee to this same court), Seth Waxman (Solicitor General under President Clinton), Carter Phillips (Assistant to the Solicitor General under President Reagan), and Walter Dellinger (Solicitor General under President Clinton).

A nominee with such sterling credentials and strong support from a broad range of the legal community is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.

The seat to which Halligan has been nominated has been vacant since 2005. In fact, the 11-member DC Circuit has lost three additional active judges since 2008. None of those judges has been replaced. Not surprisingly, this has had a serious impact on the caseload for the judges who are left. The Senate’s confirmation of George W. Bush nominee Thomas Griffith to the eleventh seat in 2005 resulted in there being approximately 121 pending cases per active judge. When the Senate debated Halligan’s nomination in 2011, that number had climbed to about 146 pending cases per active judge. Last month, with Judge Sentelle taking senior status, that number has now increased to about 188 cases per active judge, according to the most recent data on pending cases made available by the Administrative Office of U.S. Courts.

Caitlin Halligan has excelled throughout her career. With yet another vacancy opening up on the DC Circuit just last month, the need for someone of her caliber on the bench is greater than ever before. Her nomination deserves a vote on the Senate floor, and she should be confirmed to the DC Circuit.

Sincerely,

Marge Baker
Executive Vice President for Policy and Program
People For the American Way

Senate Majority Leader Harry Reid says he will ask the Senate to vote this week on the nomination of Caitlin Halligan, President Obama’s nominee to fill one of four vacancies on the DC Circuit Court of Appeals.

One of President Obama’s most significant, but least noticed, achievements has been his effort to bring more women and people of color to the federal bench. Last week, the U.S. Supreme Court showed us just how critical that effort is.

In oral arguments on Shelby County v. Holder, the challenge to Section 5 of the Voting Rights Act, Justice Antonin Scalia declared that the renewal of voting protections for people of color simply amounts to a “racial entitlement.” Justice Sonia Sotomayor, the first Latina on the Supreme Court, promptly contradicted him.

Scalia’s arrogant dismissal is echoed by the conservative activist who tells the Post that the White House may be “lowering their standards” in nominating women and people of color and the GOP aide who worries that a focus on diversity would “override the substantive qualifications of the nominees.”

President Obama hasn’t had to choose between qualified nominees and diverse ones. Instead, he’s chosen judges and justices like Sotomayor: excellent nominees from diverse backgrounds, all of whom have earned their way to judgeships for which they are eminently qualified.

LESLIE WATSON MALACHI
DIRECTOR, AFRICAN AMERICAN RELIGIOUS AFFAIRS
PEOPLE FOR THE AMERICAN WAY

This morning, the Senate Judiciary Committee approved five nominees to serve on federal district courts in New York, California and Florida and on the US Court of International Trade. A week ago, Iowa Republican Sen. Chuck Grassley postponed votes on all five nominations without giving a reason, a delaying tactic that he has used on 97 percent of President Obama’s judicial nominees who the committee has voted on.

Sen. Grassley did not explain the reason for the delay last week, when a coalition of Iowa and national groups urged him to stop such routine delays. And the reason remained unclear today, as all five nominees were approved without opposition.

These five nominees now join fifteen other federal judicial nominees awaiting confirmation votes from the full Senate. The Senate has made progress by scheduling confirmation votes on four unopposed district court nominees in the past week, but that small amount of progress isn’t nearly enough to fill the gaps in overworked federal courts. Seven of the nominees still waiting for votes would fill officially-designated “judicial emergencies.”

It would be easy, of course, for the Senate to hold votes on all of the remaining nominees before the end of the year. After all, most were approved by the Judiciary Committee many months ago. But Senate Republicans have continued to stall even nominees with strong bipartisan support. All the circuit court nominees waiting for votes have the support of their home-state senators, Republican and Democratic, and nearly all of the pending district court nominees were approved by the Judiciary Committee with unanimous or nearly unanimous bipartisan support. One circuit court nominee, New Jersey’s Patty Shwartz, has been waiting nine months just for an up-or-down vote from the Senate; Federal Circuit nominee Richard Taranto has also been waiting since March.

If the Senate fails to vote on these nominees during the lame duck, the confirmation process – from presidential nomination through floor vote – will have to start all over again next year.

Notable about the district court nominees approved by the Judiciary Committee today is that all are women or people of color, representative of President Obama’s efforts to bring diversity to the federal courts. The nominees also include New York’s Pamela Chen, who would become just the fifth openly gay person to be confirmed to a lifetime federal judgeship.

Virginia’s House of Delegates yesterday rejected the nomination of a state prosecutor to serve as a judge – just because he is openly gay.

Tracy Thorne-Begland, a Navy veteran who has been a prosecutor in Richmond for 12 years, enjoyed bipartisan support in the House of Delegates until, at the last minute, he came under attack from far-right Delegate Bob Marshall and the right-wing Family Foundation. The Richmond Times Dispatch reports:

A late-hour lobbying offensive by social conservatives prevailed in the House of Delegates early Tuesday to torpedo bipartisan support for the judicial nomination of an openly gay Richmond prosecutor.

After a lengthy discussion, the GOP-controlled House of Delegates defeated the nomination of Tracy Thorne-Begland, Richmond's chief deputy commonwealth's attorney. He would have been the first openly gay judge elected in Virginia.

Thorne-Begland received 33 votes, and 31 delegates voted against him. He needed a majority of the 100-member House -- 51 votes -- to secure the judgeship.

….

In an email blast to supporters late last week, the Christian conservative Family Foundation questioned Thorne-Begland's fitness for the bench given his support for gay marriage, which is not legal in Virginia. Thorne-Begland and his partner, Michael, live together and are raising twins.

Opponents of gay rights, in their effort to keep LGBT people out of the public square, have in the past few years gone after several openly gay judges and judicial nominees. Supporters of California’s discriminatory Prop 8 tried to get a federal judge’s ruling against them thrown out because the judge is openly gay. Another judge issued an epic takedown of their argument.

A number of Republican delegates in Virginia, as well as the state’s socially conservative governor Bob McDonnell backed Thorne-Begland’s nomination until Del. Marshall began his onslaught.

Del. Marshall is the one who claimed in 2010 that disabled children are God's punishment for abortion. On Don’t Ask, Don’t Tell – a policy that Thorne-Begland worked to end after his distinguished career in the Navy – Marshall said openly gay troops would distract their fellow servicemembers: "It's a distraction when I'm on the battlefield and have to concentrate on the enemy 600 yards away and I'm worried about this guy whose got eyes on me." Once Don’t Ask, Don’t Tell was repealed, Del Marshall tried to get gay Virginians banned from the state’s National Guard.

Marshall later told theWashington Post that he objected to Thorne-Begland’s brave coming out in protest of Don’t Ask, Don’t Tell:

I would guess — law of averages — we’ve probably nominated people who have homosexual inclinations,” Marshall said. Marshall faulted Thorne-Begland for coming out as a gay Naval officer on “Nightline” two decades ago to challenge the military’s now-repealed ban on gays openly serving in the military. He said that amounted not just to insubordination, but to a waste of taxpayer dollars, since it resulted in his dismissal from the Navy. “The Navy spent $1 million training him,” Marshall said. “That’s cheating the country out of the investment in him.”

In the end, it was Del. Marshall’s arguments that won out in the effort to halt the career of a dedicated Virginia public servant.